Tuesday, December 07, 2010

Dec 6: The U.S. Supreme Court has granted a petition to hear the controversial case of American Electric Power Company Inc., et al., Petitioners v. Connecticut, et al (Docket No. 10-174) appealed from the Court of Appeals for the Second Circuit decision of September 21, 2009 [See WIMS 9/22/09]. Justice Sotomayor took no part in the consideration or decision of this petition. The Second Circuit case was decided by a two judge panel because Justice Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The case will be argued next spring.

The Supreme Court indicates that the issues questions presented in the case are: "The court of appeals held that States and private plaintiffs may maintain actions under federal common law alleging that defendants -- in this case, five electric utilities -- have created a 'public nuisance' by contributing to global warming, and may seek injunctive relief capping defendants' carbon dioxide emissions at judicially-determined levels. The questions presented are:

1. Whether States and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources.

2. Whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency.

3. Whether claims seeking to cap defendants' carbon dioxide emissions at 'reasonable' levels, based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct, would be governed by 'judicially discoverable and manageable standards' or could be resolved without 'initial policy determination[s] of a kind clearly for nonjudicial discretion.' Baker v. Carr, 369 U.S. 186, 217 (1962)."

In the major 139-page decision of the Second Circuit regarding citizen and government enforcement of greenhouse gas emissions the Appeals Court summarized saying, the case is appealed from a judgment of the United States District Court for the Southern District of New York that dismissed Plaintiffs-Appellants' Federal common law of nuisance claims as non-justiciable under the "political question doctrine." The Second Circuit Appeals Court ruled that, "We hold that: (1) Plaintiffs-Appellants' claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants' claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we vacate the judgment of the district court and remand for further proceedings."

In its conclusion, the Appeals Court said additionally, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. Milwaukee I, 406 U.S. at 106."

Environmental organizations praised the Second Circuit opinion. The Natural Resources Defense Council (NRDC) issued a release calling the decision "a landmark ruling," that "five large electric power companies can be sued in Federal court because their carbon dioxide emissions contribute to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires." [See WIMS 9/22/09].

The U.S. Chamber of Commerce Calling the decision an "alarming reversal of established precedent." The U.S. Chamber Institute for Legal Reform said, "We are deeply troubled that the Second Circuit has chosen to ignore well-settled law and allowed the plaintiffs' lawyers' novel public nuisance claims to proceed. For the better part of the decade, key players within the plaintiffs' bar have been aggressively advancing a twisted use of the public nuisance legal theory -- an 800-year-old legal concept historically applied to unreasonable interference with public rights -- as an avenue for new mass tort litigation to address issues not designed for judicial resolution. While courts have rightly repudiated this flawed legal scheme, America's lawsuit industry needs only one precedent-setting victory to open up a public nuisance can of worms."

Plaintiffs in the Second Circuit case involved the states of CT, NY, CA, IA, NJ, RI, VT, and WI plus New York City, Open Space Institute, Inc., Open Space Conservancy and the Audubon Society of New Hampshire. Defendants included: American Electric Power Company, Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation.

Access the Supreme Court docket indicating the various brief filed, questions presented and attorneys involved in the case (click here). Access the Supreme Court Order including the case (click here). Access links to the 2nd Circuit decision, briefs and petitions filed (click here).

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